The chasm between those states that "do" and those states that "don't" is big and getting bigger. One day after Ohio legislators approved a sweeping ban on same sex unions, the Massachusetts Supreme Judicial Court issued an advisory ruling declaring that only same-sex marriage outright, and not merely same-sex unions, would satisfy the Bay State's constitution. Dozens of other states already have outlawed civil unions. But several other states, and many local communities, formally recognize some form of rights for same-sex couples.
The Justices of the United States Supreme Court probably can feel this legal, political, religious and moral firestorm coming their way. In fact, they helped start the conflagration last June when a majority on the Court outlawed Texas' sodomy stature because it discriminated against homosexuals. Ultimately, the Justices will have to decide whether the rationale of their Texas ruling can extend beyond the arena of the criminal code and into the arena of civil rights and privileges. A definitive answer to that question probably is years away. But between now and then the fur is going to fly in dozens of courtrooms across the country.
That Ohio and Massachusetts would be heading in such starkly different directions on this issue on the very same day illustrates just how tough it will be for judges and politicians alike to come up with a policy that both comports with the federal Constitution and keeps the peace among the states.
From a legal standpoint alone, there are equal protection issues, full-faith-and-credit issues, due process issues, and federalism issues inherent in the debate over same-sex unions. Indeed, of all the hot-potato issues currently swirling around the courts, the same-sex marriage issue has the clearest potential to be for this decade of jurisprudence what the abortion rights issue was to the jurisprudence of the 1970s. And I suspect there hasn't been a man or woman born yet who is smart enough to figure out how to reconcile all the factions.
The Ohio ban -- called the Defense of Marriage Act -- is notable for its breadth and depth. It bans same-sex unions (never mind same-sex marriages). It bans state benefits for both homosexual and heterosexual domestic partners. And it forbids the state from recognizing any same-sex unions that might be recognized in other states. The law almost certainly will be challenged and its validity ultimately will be determined by the courts of Ohio applying the language and intent of that state's constitution. Will the ban stand? I have no idea and I suspect neither do the folks who passed it into law.
In Massachusetts, the debate is different. There, the fight isn't over whether same-sex couples ought to be given certain rights or not. There, the fight is over whether to call the status that will give rights to same-sex couples "unions" or "marriages." The legislature says that it is enough to call these relationships "unions" since the term "marriage" has been recognized for thousands of years as a relationship that only heterosexual couples get to enjoy (or not enjoy, as the case may be). The Supreme Judicial Court says that these "unions" ought to be called "marriages" since that is truly what they are.
In response to a court ruling last November, the Massachusetts legislature came up with a bill that would have granted to same-sex couples all of the rights and privileges that opposite-sex married couples currently enjoy. The bill's stated purpose was to provide "eligible same-sex couples the opportunity to obtain the benefits, protections, rights and responsibilities afforded to opposite sex couples by the marriage laws of the Commonwealth without entering into a marriage..."
In other words, because the Massachusetts Supreme Judicial Court was a little vague last fall about what the state constitution required, the legislators figured they would try to get a "civil union" bill passed first. On Wednesday, the Supreme Judicial Court said the pols didn't go far enough.
Over the dissent of two justices, the state's high court declared that "because the proposed law by its express terms forbids same-sex couples entry into civil marriage, it continues to relegate same-sex couples to a different status." And the name given to the relationship mattered to the court's majority. "The dissimilitude between the terms 'civil marriage' and 'civil union' is not innocuous; it is a considered choice of language that reflects a demonstrable assigning of same-sex, largely homosexual, couples to second-class status. For no rational reason the marriage laws of the Commonwealth discriminate against a defined class; no amount of tinkering with language will eradicate that strain."
Looming over the Massachusetts debate is the possibility that there will be a referendum there in the next few years in which voters will be able to choose whether they want to amend the state's constitution to expressly ban same-sex unions or marriages. Many other states are contemplating similar constitutional amendments and President Bush in his State of the Union address last month hinted that he might push a federal constitutional amendment designed to "defend the sanctity of marriage."
Congress, meanwhile, already has chimed in with its own Defense of Marriage Act and all of these measures eventually will be deposited in one form or another at the door of the United States Supreme Court. Whatever that landmark case ultimately will be called, we'll probably all be able to recognize its caption 10 years from now as readily as we recognize "Roe v. Wade" today. The legal fight over gay unions, or gay marriage, or whatever else you choose to call it, is here.
By Andrew Cohen